Express Cargo Services Pty Ltd v Mysko
[2023] SASC 11
•24 March 2023
Supreme Court of South Australia
(Civil)
EXPRESS CARGO SERVICES PTY LTD v MYSKO
[2023] SASC 11
Judgment of the Honourable Justice Stein
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH
EMPLOYMENT LAW - OTHER RIGHTS AND DUTIES OF PARTIES - DUTY OF CONFIDENCE OWED BY EMPLOYEE
EMPLOYMENT LAW - TERMINATION AND BREACH OF CONTRACT - REMEDIES - AGAINST EMPLOYEE
EQUITY - GENERAL PRINCIPLES - FIDUCIARY OBLIGATIONS
EQUITY - EQUITABLE REMEDIES - INJUNCTIONS - INJUNCTIONS FOR PARTICULAR PURPOSES - TO RESTRAIN BREACH OF CONTRACT
TORTS - MISCELLANEOUS TORTS - INJURIOUS FALSEHOOD - MALICE
TORTS - MISCELLANEOUS TORTS - INTENTIONAL INTERFERENCE WITH CONTRACT
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - SCHEDULES
CORPORATIONS - OTHER MATTERS - PROTECTION FOR WHISTLEBLOWERS
The applicant employed the respondent as compliance manager for a period of approximately two weeks before terminating her employment.
At around the time of, and following, termination, the respondent communicated with third parties including clients, competitors and business partners of the applicant. Those communications, among other things, referred to information concerning the applicant and its business and made assertions about the applicant and its safety compliance.
The applicant alleges the communications contain confidential information and make false assertions. The applicant alleges the respondent’s conduct constitutes breaches of contract and equitable duties of confidence, injurious falsehood and tortious interference with contractual relations.
The applicant does not seek damages from the respondent but seeks declaratory relief and permanent injunctions.
The respondent maintains the assertions in the communications are true, that she was required or permitted to make the assertions and she is a whistleblower.
Held:
1.The respondent was employed by the applicant pursuant to a binding contract of employment.
2.The respondent owed to the applicant contractual duties:
a. to act in the best interests of the applicant during her employment;
b. of confidence, which continued after termination.
3.The respondent breached the contractual duties she owed to the applicant by making false assertions in her communications and by communicating references to confidential information.
4.The respondent through some communications published false statements about the applicant with the intention of injuring the applicant.
5.The respondent was not obliged by the provisions of the Heavy Vehicle National Law (South Australia) Act 2013 (SA) to send the communications.
6.The respondent was not a qualifying whistleblower and the communications were not qualifying disclosures within relevant legislative whistleblower provisions.
7.In the circumstances, it is appropriate to grant declaratory relief and permanent injunctions.
Heavy Vehicle National Law (South Australia) Act 2013 (SA) sch cls 3, 5, 26A(1)-(2), 26C(1)-(3), 26D(1)-(3), 26F, 336A, 406, 422, 423, 438, 452; Corporations Act 2001 (Cth) ss 9, 1317AA(1)(a)-(c), (2)(a)-(c), (4)-(5), 1317AAA, 1317AAB, 1317AAC(1), 1317AAD(1)(a)-(e), (f)(i)-(ii), (g), 1317AAD(2)(a)-(c), (d)(i)-(ii), (e), 1317AADA, 1317AAE, 1317AB(1)(a)-(c), 1317AC, 1317ADA; Fair Work Act 2009 (Cth) s 117, referred to.
AMI Australia Holdings Pty Ltd & Anor v Fairfax Media Publications Pty Ltd & Ors (2011) Aust Torts Reports 82-077; Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587; Quinlan v ERM Power Ltd (No 1) (2021) 7 QR 377, applied.
Evans v Braddock [2015] NSWSC 249; Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281; Del Casale & Ors v Artedomus (Aust) Pty Ltd (2007) 73 IPR 326; Streetscape Projects (Australia) Pty Ltd & Anor v City of Sydney (2013) 85 NSWLR 196; Campaigntrack Pty Ltd v Real Estate Tool Box Pty Ltd (2021) 160 IPR 362; BSO Network Inc & Anor v EMClarity Pty Ltd (No 2) [2021] QSC 192; Antony Leslie John Woodings as liquidator of the Bell Group Ltd and the Bell Group Finance Pty Ltd v WA Glendinning & Associates Pty Ltd [2019] WASC 54; Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388; Australand Holdings Limited v Transparency & Accountability Council Incorporated [2008] NSWSC 669, discussed.Hospital Products Limited v United States Surgical Corporation & Ors (1984) 156 CLR 41; Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; Lifeplan Australia Friendly Society Ltd v Woff (2016) 259 IR 384; Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66; Moorgate Tobacco Co Limited v Philip Morris Limited [No 2] (1984) 156 CLR 414; Australian Medic-Care Co Ltd v Hamilton Pharmaceutical Pty Ltd (2009) 261 ALR 501; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) & Anor (1987) 14 FCR 434; Smith Kline & French Laboratories (Aust) Limited v Secretary, Department of Community Services & Health (1990) 22 FCR 73; Coles Supermarkets Australia Pty Ltd v FKP Limited [2008] FCA 1915; Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796; Browne v Dunn (1893) 6 R 67, considered.
EXPRESS CARGO SERVICES PTY LTD v MYSKO
[2023] SASC 11Civil
STEIN J.
SECTION A
Overview
Summary of parties’ cases
ECS’ case
Ms Roxanne Mysko’s case
Course of the trial
Witnesses
Mr Alan Leslie
Mr Nils (Colin) McGuinness
Mr Daniel Gallagher
Ms Roxanne Mysko
SECTION B
Summary of affidavits of Ms Roxanne Mysko comprising her evidence in chief
SECTION C
Factual findings – background matters
ECS’ business
TAS Group consultancy to ECS and HSE Action Plan
ECS certification and audits
SECTION D
Employment of the respondent
SECTION E
Events between 1 and 14 June 2020
Documentary evidence
Mr Alan Leslie’s evidence
Ms Roxanne Mysko’s evidence
Findings - events pre-14 June 2020
SECTION F
Events of 14 and 15 June 2020
Documentary evidence
Contested evidence of events of 14 and 15 June 2020
Mr Nils (Colin) McGuinness’ evidence
Mr Alan Leslie’s evidence
Ms Roxanne Mysko’s evidence
Findings
SECTION G
Events of 16 June 2020 and termination of the respondent
Documentary evidence
Mr Alan Leslie’s evidence
Ms Roxanne Mysko’s evidence
Findings
SECTION H
Events after the respondent was given notice of terminations and the Communications
Documentary evidence
Ms Roxanne Mysko’s evidence in relation to the Communications
SECTION I
Consequence of Communications and ECS’ response
Ensign and Santos
Easternwell
Further actions by ECS to address the Communications and subsequent audits
Ausco
Ms Roxanne Mysko’s evidence
Findings
SECTION J
Respondent’s assertions of non-compliance and safety issues
Mr Alan Leslie’s evidence
Ms Roxanne Mysko’s evidence
Fatigue management
Speeding
Wide load
Obscuring licence plate
Audits
January 2020 accident
Use of subcontractors by Maycon Tilt
Asserted instruction to damage Neil Mansell
Respondent’s reaction to perceived safety breaches
Findings in relation to alleged safety breaches and non-compliance
SECTION K
Falsity of statements
SECTION L
Ms Roxanne Mysko’s state of mind and intention
SECTION M
Existence of a contract and terms
ECS’ case
Ms Roxanne Mysko’s case
Ms Roxanne Mysko’s evidence in relation to employment
Findings as to existence of contract and terms
Terms of contract
When did the employment contract cease?
Was there a breach of contract?
Duty to act in best interests of ECS
Breach of confidentiality requirements
SECTION N
Equitable duties
SECTION O
Heavy Vehicle National Law and CoR
Ms Roxanne Mysko’s case
ECS’ position
HVNL purpose
Extent of obligations under HVNL
Primary duty under clause 26C
Was Ms Roxanne Mysko a party in the CoR?
Did CoR require the respondent to report? If so, to whom?
Application of duty under clause 26D
Was the respondent required to exercise due diligence?
SECTION P
Whistleblower allegations
Corporations Act – summary of provisions
Eligible whistleblower
Person or body to whom disclosure is made
Subject matters of disclosure
Other circumstances
Protection
SECTION Q
Injurious falsehood
Falsity
Publication
Malice
SECTION R
Interference with contractual relations
SECTION S
Remedies – appropriateness of relief sought
Conclusion
Orders
SCHEDULE A
First adjournment request
Amendment application
Opening
Second adjournment request
Recommencement of trial on 20 December 2021 and further adjournment
Applications by ECS and further orders
Ms Roxanne Mysko’s further applications
SCHEDULE B
Further request to adjourn
SCHEDULE C
SCHEDULE D
SECTION A
Overview
1 After a short period of employment as the applicant’s compliance manager, the respondent communicated with customers and clients of the applicant making allegations that the applicant was failing in its safety and compliance. The applicant contends the statements made by the respondent are false. The statements caused the applicant great concern because safety and compliance is very significant in its business. The applicant brought proceedings seeking declaratory relief and permanent injunctions to prevent the respondent from further communicating false statements, disclosing information gained during employment and engaging in conduct to further injure the applicant.
2 The respondent maintains the statements are true, she had obligations to make the statements and she is a whistleblower.
3 The main issues which arise for determination in this matter are:
·Was there a binding contract between the applicant and respondent?
·Were statements made by the respondent in her communications false?
·Was there breach of contract by the respondent?
·Did the respondent publish false statements about the applicant with the intention of injuring the applicant?
·Was the respondent obliged to send the communications by the provisions of the Heavy Vehicle National Law (South Australia) Act 2013 (SA)?
·Was the respondent a whistleblower?
·Is it appropriate to grant the relief sought?
Summary of parties’ cases
4 I set out below a high-level summary of the assertions made by each party. I refer to the applicant as ECS.
ECS’ case
5 ECS carries on a business of logistical freight management services, predominantly in the energy sector. In June 2020, ECS employed the respondent as compliance manager. About two weeks after the respondent’s employment, the respondent left Adelaide to drive to Queensland where ECS conducted work for clients in the oil and gas sector. The vehicle driven by the respondent was fitted with an In-Vehicle Monitoring System (“IVMS”) capable of detecting road traffic infringements. On the first day of the trip, the IVMS detected the respondent travelling in excess of the speed limit and failing to wear a seatbelt. ECS was automatically notified of the infractions via emails generated by the IVMS.
6 The driving infractions were raised with the respondent by one of ECS’ managers during the day and after she arrived at her stopping point that night. That evening, and into the early hours of the next day, the respondent sent a series of communications to ECS personnel which escalated in tone. On 14 June 2020, ECS management asked the respondent to return to Adelaide. ECS thereafter terminated the respondent’s employment.
7 ECS asserted that at the time of, and after, the respondent’s termination, the respondent embarked on a crusade designed to damage ECS through emails and texts sent by the respondent to competitors, clients, customers and business partners of ECS (which I refer to as the Communications). ECS asserted the Communications falsely alleged safety risks and breaches by ECS of various legal requirements and disclosed internal information of ECS in breach of contract and in breach of equitable duties of confidence and fidelity. ECS asserted the Communications constituted injurious falsehood and interference with contractual relations.
8 Soon after ECS became aware of the Communications, ECS brought ex parte proceedings seeking orders for the search and seizure of the respondent’s electronic devices and injunctive orders. Orders for search and seizure were made by this Court (“Search and Seizure Orders”) and interlocutory injunctions were granted restraining the respondent from contacting specific clients and competitors of ECS (“Injunction Orders”). A search was conducted at the respondent’s home and the respondent’s electronic devices were seized. Searches of the devices produced records of the Communications.
Ms Roxanne Mysko’s case
9 The respondent disputed the circumstances in which she was employed and terminated and many of the events occurring between those times. The respondent initially contended there was no binding contract on the basis her position description document was not signed by Mr Leslie of ECS. She accepted she worked for ECS as compliance manager and contended the employment ceased on 23 June 2020.
10 The respondent contended she is an experienced, well-known compliance manager with an extensive history of experience in the transport industry and well qualified to detect non-compliance. After commencing employment, she said she rapidly became aware of significant safety failures and non-compliance by ECS including with the provisions of the Heavy Vehicle National Law[1] and Regulations made thereunder (“HVNL”). The respondent said the position description for her role specifically required her to manage ECS’ compliance with the HVNL, including its “chain of responsibility” requirements (“CoR”). The respondent asserted that, by reason of her position in the CoR, she had a legal (and moral) duty to report breaches of the HVNL and she was legally obliged to engage in the Communications pursuant to her position description and her legal obligations under the HVNL. She also submitted the Communications only suggested the recipients conduct a safety audit, were not designed to cause harm and some of the Communications were for the purpose of protecting her own reputation in the industry.
[1] The Heavy Vehicle National Law (South Australia) text applies as a law of South Australia and the Heavy Vehicle National Regulations apply as national regulations in force for the purposes of the Heavy Vehicle National Law (South Australia) by virtue of the provisions of the Heavy Vehicle National Law (South Australia) Act 2013 (SA). The Heavy Vehicle National Law is a schedule to the Heavy Vehicle National Law (South Australia) Act 2013 (SA).
11 The respondent asserted she was a “whistleblower” accorded protection by the Corporations Act 2001 (Cth) (“Corporations Act”).
12 The respondent asserted she was bullied by ECS management. She alleged the conduct of ECS in bringing this action and the manner in which the action has been prosecuted amounts to defamation and bullying. The respondent made complaints about the way her electronic devices and information were obtained. She asserted breaches of privacy and other wrongdoing in relation to her information technology (“IT”) obtained by virtue of the Search and Seizure Orders.
13 The respondent sought the dismissal of the action and a variety of orders, including the return of IT and damages for asserted breaches of whistleblower provisions.[2]
[2] The respondent did not file a counterclaim. She made allegations in affidavits and oral evidence.
Course of the trial
14 This action has had a complex interlocutory history. The respondent was initially represented but did not have legal representation prior to, and during, the trial.
15 The trial was adjourned on several occasions on the (informal) application of the respondent. The trial was due to commence on 30 November 2021 and was initially adjourned to 1 December 2021. ECS opened its case on 1 December 2021, the trial was then adjourned to 20 December 2021 and adjourned again to 28 March 2022. The trial ultimately ran for a number of days across several weeks in March and April 2022.
16 During the period from about November 2021 through to March 2022, the parties brought a number of interlocutory applications including, in the case of the respondent, repeated applications to have the action against her dismissed without a trial.
17 To enable understanding of the manner in which the trial progressed and the various rulings I made, I set out in Schedule A to these reasons a non-exhaustive summary of aspects of the relevant interlocutory history. Schedule A should be read in conjunction with my ex tempore rulings delivered on 1 December 2021, 17 December 2021, 24 December 2021 and 3 February 2022.
18 ECS called three witnesses who gave evidence by written statements adopted during evidence. Oral evidence was largely confined to cross-examination. In the case of the respondent, four affidavits sworn between 27 January and 27 March 2022 constituted the foundation of her evidence in chief, supplemented by oral evidence.
19 Documents were mostly tendered by consent. ECS prepared a tender book. The respondent produced an indexed and paginated supplementary tender book containing many of the documents she sought to tender. While indicating many of the documents were not relevant or otherwise were inadmissible on technical grounds and reserving the right to make submissions including in relation to weight, the applicant’s counsel adopted a pragmatic approach to the tender of the respondent’s documents in the interests of progressing the action. As the respondent was not represented, I gave her considerable latitude in her evidence and in the tender of documents.
20 Although unrepresented, the respondent was prepared, organised and actively presented her case.
21 Cross-examination of the respondent commenced on 30 March 2022 and was not completed by the end of 1 April 2022. On 1 April 2022, I adjourned the trial to continue on 7 April 2022. The respondent did not attend Court on 7 April 2022. On 7 April 2022, I determined to give the respondent a further opportunity to attend the trial. I made orders the effect of which were that the respondent was required to file a formal application for an adjournment with supporting affidavit (addressing specified matters) or attend Court on 11 April. The respondent failed properly to comply with the orders made and did not attend Court on 11 April. I allowed ECS’ counsel to close its case without completing cross-examination. Further details of the events which transpired and resulted in the trial progressing in that manner are set out in Schedule B to these reasons.
22 Both parties filed written closing submissions which they supplemented orally.
23 In November 2022, the matter was listed for judgment delivery. Shortly afterwards, but prior to judgment delivery, ECS filed an interlocutory application seeking orders to re-open the trial on the basis that it had discovered material, fresh evidence which did not exist and thus was not available to be adduced during the trial. The fresh evidence included emails said to have been sent by the respondent in September 2022 to key clients of ECS and to other individuals, including a reporter, making allegations about ECS and indicating her intention to make information public in various ways.
24 I heard argument on the application to re-open in December 2022 and determined to refuse the application. The additional evidence sought to be adduced was not available at the time of the trial. However, I considered the interests of justice favoured refusing the application taking into account the need to bring the proceedings to a close as expeditiously as possible and in circumstances in which I had already finalised my judgment finding in favour of ECS and granting to it the remedies it sought. Further details are set out in Schedule D to these reasons.
25 On 1 February 2023, ECS filed a further application to re-open the trial to adduce fresh evidence. The application was based on fresh evidence closely connected with the evidence the subject of the previous application. The respondent opposed the application. I determined to refuse the application for the same reasons I refused the first such application. Further details are set out in Schedule D to these reasons.
Witnesses
26 The following statements have been made in the context of the assessment by a trial judge of issues of credit and demeanour.
27 In Evans v Braddock (“Evans”), Hallen J said:[3]
The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities…
A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation … Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine…
(citations omitted)
[3] Evans v Braddock [2015] NSWSC 249 at [73]-[74].
28 Justice Hallen continued as follows:[4]
In this regard, I have also found useful what Lord Pearce wrote, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403, at 431:
“Credibility involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
[4] [2015] NSWSC 249 at [75].
29 I bear these principles in mind in considering the evidence.
30 The evidence concerned events that occurred approximately two years ago. The evidence of the witnesses for ECS in many respects was consistent with contemporaneously created documents.
Mr Alan Leslie
31 Mr Leslie is the sole director, secretary and shareholder of ECS.
32 Mr Leslie gave evidence in relation to the establishment of ECS, its business operations and compliance obligations, how the respondent came to be in the employ of ECS, the events leading to the termination of her employment, and the respondent’s conduct around the time of, and following, her termination. Mr Leslie gave evidence addressing the content of the allegations made by the respondent in the Communications.
33 Mr Leslie presented as intelligent and capable. Mr Leslie was consistent in his evidence.
34 The respondent cross-examined Mr Leslie for approximately one day. The respondent demonstrated a predetermined, organised methodology for her cross‑examination. She took Mr Leslie to documents within the tender book and put specific questions to endeavour to, among other things, make good assertions about ECS’ failures in safety compliance and to endeavour to establish that Mr Leslie was a liar and ought not to be believed.
35 Mr Leslie was consistent in his denials of lying and of the asserted wrongdoing and of knowledge and awareness of internal and external complaints about ECS’ compliance, including with the HVNL. Mr Leslie made some concessions in answers to questions in cross‑examination. He remained composed despite appearing at times to find it difficult to follow the questions asked by the respondent in cross-examination.
36 I found Mr Leslie’s evidence to be honest, credible and reliable. I have made a number of specific findings later in these reasons, largely in accordance with contemporaneous documents.
Mr Nils (Colin) McGuinness
37 Mr McGuinness is the general manager of project logistics for ECS. Mr McGuinness has experience in the management of logistics and business operational activities including in relation to the movement of drilling rigs and equipment. He has been employed by ECS since June 2017 and manages operational aspects of the business, including strategic and operational planning, risk management, compliance procedures and undertaking complex logistical project planning and execution.
38 Mr McGuinness gave evidence in relation to his background, his role within ECS, ECS’ compliance obligations and additional obligations imposed on ECS by its oil and gas sector clients. He gave evidence about commissioning a “Health, Safety & Environment Action Plan” (“HSE Action Plan”) from Total Assurance Solutions Pty Ltd trading as TAS Group (“TAS Group”). This document was relevant to ECS’ approach to compliance.
39 Mr McGuinness gave evidence about the employment of the respondent at ECS, about receiving IVMS notifications of the respondent’s driving infractions and his communications with the respondent in relation to those infractions.
40 The respondent asked Mr McGuinness questions in cross-examination, primarily with a view to establish that a matter contained in his written statement was false.
41 Mr McGuinness had a clear recollection of relevant events and his evidence was consistent with contemporaneous documents. I found Mr McGuiness’ evidence to be honest, credible and reliable.
Mr Daniel Gallagher
42 Mr Gallagher is the director and owner of TAS Group. Mr Gallagher has qualifications in quality assurance and auditing. He has experience working in the mining and energy sector and experience in developing and implementing operational assurance plans, contractor compliance audits and inspections.
43 Mr Gallagher gave evidence about ECS’ engagement of TAS Group, its review of ECS’ systems and preparation of the HSE Action Plan for ECS following that review.
44 The respondent cross-examined Mr Gallagher in relation to the HSE Action Plan with the apparent purpose of establishing that ECS had not conducted audits, that it should not have ad hoc processes and to cast doubt on Mr Gallagher’s view about ECS’ compliance. Mr Gallagher did not accept the propositions put to him by the respondent.
45 Mr Gallagher was independent of ECS. I found his evidence to be honest, credible and reliable.
Ms Roxanne Mysko
46 The respondent gave evidence by adopting four affidavits which she supplemented with oral evidence. I set out later in these reasons a summary of the affidavits to assist in understanding the position the respondent adopted in her evidence and submissions. I address specific aspects of the respondent’s evidence on particular topics later in these reasons.
47 During cross-examination, the respondent regularly failed to answer questions directly and she repeated the same matters on multiple occasions. The respondent often failed to allow counsel to complete the question, talked over the top of counsel and at times argued with him. At times she was relaxed and laughed in giving answers to questions but, at other times, became visibly upset or angry and defensive.
48 There is no doubt that the respondent is passionate about and holds very strong views about the importance of safety in the transport industry.
49 The respondent expressed significant anger towards Mr Leslie, Mr McGuinness and others in ECS in her evidence. The respondent blamed ECS for terminating her employment in a manner which she considered unreasonable and she considers she has been bullied.
50 In this section I provide an overview of my observations of the respondent’s evidence. I provide further details later in my reasons.
51 The respondent’s recollection of events was inconsistent. At times she asserted a clear recollection of events but, at other times, she said she could not remember relevant events which occurred approximately two years ago and which, given their significance at the time, might have been expected to remain in her memory at least to some extent.[5] In many, if not most, respects, her evidence was inconsistent with contemporaneous documents, including contemporaneous documents created by her.[6] The respondent sought to explain away contemporaneous documents in a manner which lacked plausibility.[7] Even when reminded that she was on oath, at times the respondent made statements that were directly inconsistent with her own contemporaneous documents.[8]
[5] For example, evidence relating to emails the respondent sent on 14 and 15 June 2020, and her purpose in sending correspondence on 17 June 2020: T492.29-33; T556.33-38; T598.3-19; T599.1-10.
[6] For example, emails sent during her employment in which she made positive comments about ECS’ compliance: T531.10-36; T532.17 - T533.18.
[7] One example was her attempt to explain why she had referred a potential client (Matic) to ECS in her first week of employment: T538.1-35.
[8] One example was when she insisted that her own written references to her being “furious” did not mean she was furious: T472.20-22; T497.10-29.
52 There were occasions of apparent exaggeration or reconstruction in the respondent’s evidence. While the respondent appeared to have a present belief, perhaps reinforced over time, in her altruistic explanation of the objects and intention behind the Communications she authored, her explanations could not be reconciled with the words in her own Communications. Explanations for changing her position or giving evidence inconsistent with contemporaneous documents lacked a plausible basis and were suggestive of self-serving reconstruction.[9] Other evidence was established to be untruthful.[10]
[9] One example is her evidence that ECS would not have passed an audit by Matic: T538.1-36; another is her evidence that her doctor asked her whether she had met her chain of responsibility obligations, which prompted her to send some of the Communications: T448.36 – T449.9; T451.10-17.
[10] The respondent gave initial evidence that her employment was not terminated by the Department of Agriculture, which evidence she altered only after being shown a judgment which demonstrated that evidence was not true: T507.4-26; T516.11 – T517.30.
53 I am mindful that even if a witness has lied about an aspect of evidence, that does not necessarily lead to a conclusion that all the evidence of that witness must be rejected. I have remained conscious of the need to avoid reaching overarching conclusions about the respondent’s reliability and credibility. Given the internal inconsistencies and inconsistencies in her evidence with contemporaneous documents, I have approached the respondent’s evidence with considerable caution. In making findings of fact, I have been guided primarily by contemporaneously created documents. I have also borne in mind the circumstances of the trial in which the respondent did not complete her evidence.
SECTION B
Summary of affidavits of Ms Roxanne Mysko comprising her evidence in chief
54 I set out below a summary of matters alleged by the respondent in her four affidavits sworn between 27 January and 27 March 2022,[11] and oral evidence, without repeating the matters which overlap to a considerable extent. I set out the summaries to give context and understanding to the background facts, issues and my findings. I have endeavoured to use the respondent’s own language. Where relevant, I summarise the respondent’s oral evidence in later sections.
[11] Exhibits R11 – R14.
55 The respondent said she has 20 years of experience in the heavy vehicle transport industry and is recognised nationally as a subject matter expert in CoR legislation. The respondent gave evidence of her background and extensive experience in the transport industry, including working for New South Wales Transport as a consultant, education manager and industry liaison. She said her responsibility included 300 enforcement officers and three million trucks travelling on New South Wales roads per year. She said she was responsible for training New South Wales police in aspects of heavy vehicle regulations for enforcement. Her experience included being a regional manager for Kimberley TAFE, being a regulator and senior executive for Federal Health and Aged Care in the Northern Territory and working for the Department of Agriculture. She said she was in the task force for new legislation for exports and she worked for the Department of Home Affairs in relation to risk assessment.
56 The respondent said she has worked in the safety and compliance area for a long time and across transport since 2009, including road fatality investigations and an accident investigation in January 2020.
57 The respondent stated she had worked with Assistant Shadow Minister for Transport Senator Glenn Sterle,[12] and given two speeches to a federal inquiry into safety issues in the heavy transport industry. The respondent said she was in mock trials for the Government of New South Wales in relation to CoR prior to the HVNL being finalised. She asserted she knew CoR pretty well.
[12] His correct title was Shadow Assistant Minister for Road Safety.
58 The respondent stated that prior to accepting the role at ECS she had been interviewed by BHP for a job to review their processes and training for underground operations.
59 The respondent asserted that ECS claimed a large sum of insurance resulting from her quality work in January 2020, ECS interviewed her and were satisfied with her experience, agreed with her findings of non-safety and consequently approved her travel to Queensland to sort out solutions. She stated that ECS agreed in the first week of her employment that her findings were correct and she should commence audits. She stated: “I did absolutely witness non safety that breached laws that I was made the responsible person to uphold in the business of the applicant”.[13]
[13] Exhibit R12 at [37].
60 The respondent contended that as her position description was not signed by Mr Leslie, there was no contractual agreement between the respondent and ECS.
61 The respondent stated fear of becoming a scapegoat.
62 The respondent asserted:[14]
I was employed to uphold safety and heavy vehicle compliance laws to remove this responsibility from owner, and in many cases if an accident did occur the company owner would be quick to make the Safety and Compliance person the scapegoat for removing his responsibility across to an employee, which is very quickly what I identified would be ‘highly likely to occur’ in future inside this businesses culture of cover up and non‑compliance activities, to my expertise and what I witnessed very knowingly undertaking law commonwealth breaking activities.
[14] Exhibit R14 at [8].
63 The respondent asserted that, as soon as she was employed by the applicant, she had to make a fast decision to drive to Queensland to consult with Mr McGuinness as he was acting in a reckless manner to the HVNL and CoR:[15]
I am used to driving long distances due to my experience in this industry. As a compliance manager I hold myself to a high standard for safety while on the road. I most definitely would not have travelled there as quickly if laws were being upheld by this organisation in heavy vehicle industry. I would have liked time to spend getting to know the systems and all businesses policies and procedures inside ECS, and a complete vigorous Audit, but that was not possible as it was a panic to get to Qld because in my views very reckless activities in heavy vehicles compliance were happening. Most organisations allow a Compliance Manager to undertake Audits and review all Policies and Procedures, not at ECS.
[15] Exhibit R14 at 36, [2].
64 The respondent said she decided to rush to Roma as the risk of a large number of independent subcontractors not being audited was:[16]
…no way responsible actions, but also put me personally responsible for all these vehicles we had zero knowledge of safety standards of vehicle maintenance and vehicle repairs.
[16] Exhibit R11 at 7, [16].
65 The respondent characterised Mr Leslie’s approval for her to travel to Queensland as having been based on her concerns and her reporting very poor safety to Mr Leslie.
66 The respondent said that on Sunday 14 June 2020, while on her journey to Dubbo, she received an abusive phone call at Hay from Mr McGuinness stating she had speeding and seatbelt infractions. The respondent said she did not have a seatbelt breach, as she was still in the service station, and she does not drive a car without a seatbelt. She accepted overtaking two B-double trucks and apologised but said the other accusations were not correct. The respondent said she checked in regularly, including at Mildura, and not a word was spoken of any speeding issues by Mr McGuinness. The respondent said she called Mr McGuinness that evening after receiving another text and was told by him to stand down. The respondent asserted he was abusive and aggressive during the telephone call. She said she tried to explain the reasons for the infractions but was told she could not continue driving and that she would be investigated on Monday. The respondent says she complained to Mr Leslie in a telephone message left for him that evening but there was no return call from him as he was too busy making money and there was a failure of duty of care in her having to drive home upset. She said she simply received a text message to the effect that he was busy and to drive safely back to Adelaide. The respondent claimed she was abused, bullied and intimidated in the middle of nowhere, and was unsupported, mistreated and dismissed because she stood up to Mr McGuinness in relation to speeding accusations that were not true.
67 The respondent asserted ECS deliberately operated without safety as a priority and that if a business operates:[17]
…far beyond not obeying the regulations and laws for NHVL, the applicant certainly was, it gives them a high level of competitive advantage over other businesses operating compliantly, and therefore you could a liken this to ‘illegal income streams’ for the applicant, also giving him a competitive advantage over an honest ex-employee standing to ‘protect our laws that are in place to stop this activity to exploit and risk other peoples lives, like what I witnessed.
[17] Exhibit R14 at [19].
68 The respondent stated:[18]
The number of confidential complaints from his own staff in the first week was high and appalling, that the applicant is still choosing to ignore even through this court case, he is being again extremely dishonest to courts, to the point I made a decision that I was going to resign on the Friday 5 June 2020, Wayne Knowles asked me to stay as it is a $40 million business.
…The applicant employed me to be responsible for laws, then when he is breaking laws to critical level he is NOT interested in my expertise and tries to REMOVE my responsibility by suing me at court to ‘Shut my Gob’ and demand I pay him for him breaking commonwealth laws, that I personally and professionally WILL NOT cover up for him operating unsafe knowingly for a very long time.
[18] Exhibit R14 at [23]-[24].
69 The respondent asserted the level of extreme fatigue from pushing drivers came from Mr McGuinness:[19]
…and I can absolutely testify the high serious level of this was definitely exploitation of human work rights, and probably Mr McGuiness [sic] has come from a culture background perhaps of black slavery was acceptable, so the fatigue breach seriousness could be allied with a likeness of slavery and abuse from this GM, as this doesn’t occur to this level in Australia, only by the worst 10% of businesses in transport, and I can validate this by my experience and work inside NSW Transport Heavy Vehicle regulator, this company was to extremely bad with compliance. I’m of the understanding this GM with high aggression had recently joined ECS, had very limited knowledge of transport sector, but had no issues aggressively pushing fatigue and drivers I was told and had reported.
[19] Exhibit R14 at [9].
70 The respondent made other assertions of wrongdoing by Mr Leslie and ECS, including, adopting the respondent’s language, that ECS was one of the worst, unsafe businesses she had worked in over decades, ECS was making money by exploiting safety, safety was not the priority, Mr Leslie created a culture of fear to speak about safety, and ECS was misleading the Court. The respondent referred to Mr Leslie as an “intimidating thug”.[20]
[20] Exhibit R14 at 13, [52].
71 The respondent claimed the HSE Action Plan prepared by Mr Gallagher was not actioned and ECS breached the policies and codes of conduct of its clients such as Ensign Australia (“Ensign”), Santos Limited (“Santos”) and BHP.
72 The respondent asserted that she was directed by email on 3 June 2020:[21]
…that I source all sub-contractors that have been approved by Neil Mansel Transport to get onto the Applicant’s books for rig moving, certainly was NOT my responsibility to poach other businesses [sic] contractors…
[21] Exhibit R14 at 40, [18].
73 The respondent said that while she was employed by ECS she had numerous CoR breaches reported to her by employees and subcontractors. She claimed there was a critical fatigue breach complaint of a driver working 30 days straight and she personally witnessed a spreadsheet showing employees working multiple days in a row with no days off. The respondent stated she witnessed many heavy vehicle speeding reports that were not taken seriously by ECS and said she was directed not to speak to certain drivers about compliance issues. The respondent claimed Mr Edwards, an ECS salesperson, complained about the engagement of a subcontractor in Queensland called Maycon Tilt. She stated that Mr McGuinness used Maycon Tilt to pull in 15-20 other owner-operators to move rigs and that Mr McGuinness was pushing CoR onto Maycon Tilt.
74 The respondent accused ECS of dishonesty, breaking law and of running an unsafe business under CoR and HVNL.
75 The respondent asserted that, as a result of doing an accident investigation in January 2020, she became aware that ECS was not compliant in using a transport company without undertaking an audit. She asserted that, in June 2020, ECS was still not undertaking audits on freight transport despite being told by her and by TAS Group in February 2020 it should conduct audits. She claimed Mr Leslie admitted his non-compliance in an email to her.
76 The respondent said that when she joined ECS, ECS had been operating under the HVNL for six years and had not been undertaking due diligence and obligations under regulations for the safety of subcontractors. She asserted ECS was not auditing clients and customers in June 2020, was extremely reckless, completely ignored national standards to audit and was not upholding obligations to check ECS ensured the safety of its transport activities. The respondent relied on an email from Mr Leslie to her on 3 June 2020 at 2.12 pm asking for her advice on the gaps ECS currently had and asserted the following statement constituted an admission: “mainly physical audits is the exact same sentiments of our external auditor. We must be more proactive in maintaining approved contractors”. The respondent said that the email was an admission “he had not fulfilled and absolutely failed his obligations to NHVR obligations by auditing any independent contractors on safety”.[22] The respondent asserted Mr Leslie’s approval of her travel to Queensland constituted an admission of major non‑compliance issues within ECS.
[22] Exhibit R11 at 8, [24].
77 The respondent said ECS was dictating that she cover up its unsafe behaviours that were critical and were “at critical levels of safety as dangerous harm to others and persons internally and publicly”.[23]
[23] Exhibit R12 at [41].
78 The respondent stated she reported ECS in the CoR to a few companies she was instructed she had to meet in Queensland. The respondent characterised herself as a whistleblower, reporting breaches she witnessed. The respondent stated that at no time did she advise companies to discontinue any business dealings or agreements with ECS. She claimed she only recommended they engage in a professional CoR audit to guarantee ECS was upholding its legal responsibilities.
79 The respondent asserted that Mr Leslie illegally accessed a copy of her CoR report which was a direct responsibility she held under the position description she signed while employed with ECS. She asserted this arose after an employee of Ensign emailed to Mr Leslie a copy of an email from the respondent to Ensign which the respondent had marked confidential. She asserted the sharing the email wrongly triggered this litigation and constituted a breach of whistleblower legislation.
80 The respondent said she contacted Santos, Easternwell Pty Ltd (“Easternwell”) and Ensign to advise them to undertake investigations of their own on ECS and potential subcontractors. She did not tell any person to cancel or terminate contracts but advised they “take their risk mitigation due diligence”.[24]
[24] Exhibit R14 at 40, [15].
81 The respondent stated she attended a meeting with Ausco Modular Pty Limited (“Ausco”) on 11 June 2020 with Mr Knowles, Mr Redfern, two Ausco representatives and herself. She said she did not tell Ausco not to give ECS a contract for BHP work. She said: “I suggested that they undertake an audit and investigation to ensure compliance of driver’s hours”.[25]
[25] Exhibit R14 at 39, [12].
82 The respondent said she had a legal and moral obligation to report breaches to the relevant government regulators:[26]
Due to what I considered to be the urgency of these breaches, I also decided to report directly the companies I was meant to be working with in Queensland, and one in Adelaide. I understood that these companies were going to be working with the Applicant in the immediate future, and so made the reports to ensure road safety for all of the community…
[26] Exhibit R14 at 39, [11].
83 The respondent asserted she told people to audit and stand up to this “critical level” of breaches that she witnessed. She considered it was reasonable for her to do so due to her position in the CoR, even after she was no longer employed by ECS, and to encourage those companies to conduct an audit of compliance procedures or investigations into CoR breaches. She contended that every person in the chain is responsible for breaches and can face substantial fines and jail sentences. She maintained that ECS was reckless in CoR and HVNL.
84 The respondent asserted she was reporting misconduct in the CoR under the HVNL for which she was personally liable as ECS’ compliance manager. She asserted: “no Position Description overrides responsibilities to Commonwealth criminal laws under NHVL and CoR”. The respondent asserted a right as compliance manager to report misconduct, and to report unsafe practices by ECS. She asserted rights under the Corporations Act to not have her identity disclosed and not to be caused detriment from the disclosure of her identity.
85 Using the respondent’s language, she said that as an employee with a compliance management position description, HVNL, CoR and responsibility for auditing and ensuring due diligence, she had personal liability under criminal laws, and it was not reasonable to expect any employee to accept such liability when laws were not being upheld by ECS for six years. She stated ECS “was reckless, irresponsible and disobeyed these criminal laws we operated under in one of the most dangerous jobs in the country, road transport…”.[27]
[27] Exhibit R11 at 5, [7].
86 The respondent provided 13 references to the Court.[28]
SECTION C
[28] Exhibit R15.
Factual findings – background matters
87 I set out my factual findings in relation to background matters in a narrative form. In making my findings I have relied significantly on documents created contemporaneously with relevant events. Where there are contests of particular significance in the evidence of witnesses, I have summarised the evidence and then my findings in later sections of my reasons.
ECS’ business
88 Mr Leslie is the sole director, secretary and shareholder of ECS.
89 ECS’ head office is located in Adelaide. Mr Leslie is based in Victoria and Mr Colin McGuinness, ECS’ general manager, project logistics, is based in Brisbane. ECS has about 30 employees. Mr McGuinness is the general manager of the business module of ECS that operates in the oil and gas sector. Mr Wayne Knowles was the general manager of the logistics business module of ECS that operated general freight services.
90 Mr Leslie has qualifications and experience in transport, planning and logistical services, particularly in the oil and gas industry. In about 2004, Mr Leslie commenced gaining experience in scheduling use of equipment and oversight of transport operations and project management involving complex, specialised equipment, mainly in the oil and gas sector. Mr Leslie set up ECS in 2007 to become an external provider of planning and logistical services.
91 ECS currently has approximately 50 clients including entities such as Santos, Easternwell, Ausco, Schlumberger and Ensign. Between 2007 and 2020, there was a significant increase in work performed by ECS for the oil and gas sector. ECS predominantly became a contractor performing specialised work for oil and gas companies, including movement of specialist equipment between locations, rather than simple, routine transport tasks. ECS maintains a database of pre-qualified contractors which assist ECS to complete various projects around Australia.
92 In about 2015, ECS obtained quality management certification to International Organisation for Standardisation (“ISO”) ISO:9001 standard.
93 In about 2018 and 2019, ECS commenced establishing its own fleet of prime movers, trailers and light vehicles which ECS owns or leases. ECS has some permanent drivers based near Roma in Queensland, a location where ECS undertakes significant work.
94 Some companies within the oil and gas sector set safety standards which are higher and more stringent than those generally required by law, such as installation of IVMS and imposition of stricter speed limits. It is necessary for ECS to demonstrate compliance with those clients’ higher standards in order to pre-qualify to be able to tender for work in the oil and gas sector.
95 From about July 2019 to June 2021, ECS employed Ms Wendy McRoberts as a compliance administrator to assist ECS in establishing, and maintaining compliance with, policies and systems required by the HVNL and to assist in administering specific client driven (higher) requirements for transport operations in the oil and gas sector. ECS commenced installing IVMS in its trucks in 2019 and expanded installation of IVMS to almost all of ECS’ vehicles. Part of Ms McRoberts’ role was to deal with non‑compliances identified by the IVMS including investigating reports of exceeding speed limit, issuing reports and ensuring corrective action was taken. Ms McRoberts’ role also required taking steps to ensure ECS was complying with the HVNL such as arranging fatigue management training and monitoring work diaries to ensure compliance with maximum allowed driver hours.
96 ECS has a number of competitors. These include Neil Mansell Transport Pty Ltd (“Neil Mansell”) and Malcolm Beattie Transport, known as BT Transport and Logistics Pty Ltd (“Beattie”).
TAS Group consultancy to ECS and HSE Action Plan
97 TAS Group was engaged by ECS in about 2015 to develop management systems and plan and develop an occupational health and safety system to enable ECS to tender for work for clients in the oil and gas industry and to enable ECS to meet more stringent standards imposed by clients in that industry.
98 ECS was managing a dual system, one for compliance with HVNL for standard operations and another for the stricter requirements of its oil and gas clients. This created inefficiencies. In about November 2019, Mr Leslie engaged Mr Gallagher to assist ECS to implement a new online system to give ECS oversight of all operations and to streamline training, equipment audits and subcontractor audits for oil and gas compliance. This was to enable ECS to audit and pre-qualify its own contractors to enable ECS efficiently to exceed standards and be able to pre-qualify to tender for work with companies in the oil and gas industry.
99 Mr Gallagher conducted a review of ECS’ existing systems. TAS Group produced and delivered to ECS the HSE Action Plan[29] and ECS took steps to implement the recommendations of the HSE Action Plan. The system was completed in about November 2020 by TAS Group.
[29] Exhibit A1 – Tender Book at 44.
100 The evidence of each of Mr Leslie, Mr McGuinness and Mr Gallagher in relation to the involvement of TAS Group and the HSE Action Plan was consistent. I address further below Mr Gallagher’s evidence which contradicted the respondent’s assertions of breaches of safety and compliance by ECS.
ECS certification and audits
101 As an operator of heavy vehicles, ECS must comply with the HVNL and must be accredited. I set out below its certification and audit compliance which are relevant to conclusions about safety compliance.
102 In about 2017, on behalf of Easternwell, Mr Gallagher undertook an audit of ECS’ systems and operations. Mr Gallagher gave evidence that ECS successfully passed the audit.
103 On 1 March 2019, Greencap, a risk management and compliance consultant entity, issued to ECS an assessment summary noting competency was achieved[30] in relation to various topics including subcontractor pre-engagement processes, driver fatigue processes, management of driver drug and alcohol and so on.
[30] Exhibit A1 – Tender Book at 773-778.
104 On 18 April 2019, ECS received a certificate of approval, valid to 17 April 2022, certifying that ECS’ accreditation system had been examined by Main Roads approved auditors and found to be conforming to the requirements of Western Australian heavy vehicle accreditation in relation to fatigue, dimension, loading and maintenance.[31]
[31] Exhibit A1 – Tender Book at 25.
105 In June 2019, ECS joined Safer Together, an industry forum which created a set of agreed requirements for contractors working in the oil and gas sector.[32]
[32] Exhibit A1 – Tender Book at 772; T206.
106 On 17 July 2019, a National Heavy Vehicle Accreditation Scheme (“NHVAS”) approved auditor certified ECS had been audited in accordance with the NHVAS business rules and standards and met requirements for maintenance management and basic fatigue management.[33] The report did not contain any requests for corrective actions. On 17 July 2019, Mr Leslie signed a declaration including that ECS’ management systems would ensure compliance with the relevant NHVAS business rules and standards.[34]
[33] Exhibit A1 – Tender Book at 26-41.
[34] Exhibit A1 – Tender Book at 41.
107 On 28 August 2019, the NHVAS issued a certificate of accreditation, valid to 28 August 2021, to certify that ECS was accredited for maintenance management and basic fatigue management.[35]
[35] Exhibit A1 – Tender Book at 42-43.
108 On 23 September 2019, a nationally recognised training organisation issued to Mr McGuinness a document stating that Mr McGuinness had fulfilled the requirements of “Apply chain of responsibility legislation, regulations and workplace procedures”.[36]
[36] Exhibit A1 – Tender Book at 743.
109 On 19 February 2020, Ensign conducted an audit of ECS in respect of heavy vehicle compliance. Audit criteria included legal compliance and CoR, occupational health and safety, risk assessments, fatigue management, safe load, speed management, maintenance, driver health and subcontractor assessments. ECS was largely found compliant. On 26 February 2020, Ensign sent to Mr McGuinness an email in relation to the audit which advised there were only a few items mentioned in the audit which mostly were improvements on what ECS already had implemented within its system.[37]
[37] Exhibit A1 – Tender Book at 388-389.
110 On 11 March 2020, a NHVAS approved auditor certified that an audit had been conducted in accordance with NHVAS business rules and standards and ECS met all the requirements of the NHVAS business rules and standards for maintenance management and basic fatigue management. No corrective actions were identified.[38]
[38] Exhibit A1 – Tender Book at 55-70.
111 On 21 May 2020, Compass Assurance Services issued to ECS a certificate of registration, valid to 18 May 2023, certifying that ECS had been assessed and certified to ISO9001:2015 quality management systems and ISO45001:2018 occupational health and safety management systems.[39]
[39] Exhibit A1 – Tender Book at 86.
112 On 30 July 2021, the NHVAS issued a certificate of accreditation to ECS accrediting ECS for maintenance management and basic fatigue management until 29 August 2023.[40]
[40] Exhibit A1 – Tender Book at 828-829.
113 I accept ECS achieved the certifications and accreditations referred to above.
SECTION D
Employment of the respondent
114 Mr Leslie determined in May 2020 to recruit a fulltime new compliance manager to work with Ms McRoberts and ECS’ managers on compliance issues and systems development.
115 On 7 May 2020, the respondent sent to Mr Knowles, an employee of ECS, an email attaching her curriculum vitae saying “I’m very interested in job”.[41] On 13 May 2020, Mr Knowles forwarded the respondent’s email to Mr Leslie.
[41] Exhibit A1 – Tender Book at 71-72.
116 Mr Leslie and Mr McGuinness interviewed the respondent by telephone. They considered the respondent interviewed well. Prior to speaking with her, Mr Leslie prepared a draft position description document and during the interview asked the respondent questions about it. The respondent wanted an opportunity to review the document. Mr Leslie emailed the document to her, asked her to review it and scheduled another phone conference with her.
117 Mr Leslie had a second phone conference with the respondent to discuss matters such as salary expectations and start date.
118 On 25 May 2020, Mr Leslie sent to the respondent by email a letter dated 22 May 2020 offering her employment with ECS. The email stated if there were any questions the respondent should clarify them with Mr Leslie directly.
119 The attached letter commenced:[42]
I am pleased to offer you employment in the position of Compliance Manager with us at Express Cargo Services Pty Ltd trading as ECS Project Logistics (“The Company”) on the Terms and Conditions set out in this letter.
[42] Exhibit A1 – Tender Book at 87.
120 The letter set out a start date of 1 June 2020 with employment on a fulltime basis. The letter stated that the duties of the position were set out in an attached position description. A probation period of three months applied.
121 The letter of engagement stated that the terms and conditions of the employment would be those set out in the letter and applicable legislation.
122 I set out in further detail in Section M below the content of the letter and position description document.
123 The letter stated:[43]
To accept this offer of employment, please return a signed and dated copy of this letter to me by Friday 29th May 2020
[43] Exhibit A1 – Tender Book at 99.
124 A document entitled “Position Description” was attached to the letter.[44] It stated the position required the employee to work closely with the managing director and the management team to assist with tasks directly relating to safety of staff and compliance with Australian law, standards and policies and procedures. The duties and responsibilities were stated as including managing company compliance with “NHVR and WAHVA requirements” and CoR requirements; managing subcontractor pre-qualification and compliance; management and maintenance and further development of systems for driver work diary auditing; assisting with tender submissions and pre‑qualification documentation; auditing company systems and procedures in line with certifications held by the company and completing internal investigations and reports including assisting clients with investigations when required. The position description stated that employees were responsible and accountable for compliance with ECS’ policies and procedures.
[44] Exhibit A1 – Tender Book at 100.
125 The position description contained as its last substantive line the following:
To confirm that you accept your employment, please sign and date below:
Employee Managing Director
Roxanna [sic] Mysko Alan Leslie
Date: _____________ Date:_____________
126 On 27 May 2020, the respondent sent an email to Mr Leslie attaching a copy of the “PD and LOE signed” and stating that she was looking forward to starting.[45] The email attached a signed copy of the letter of engagement and a signed copy of the position description. On 27 May 2020, the respondent signed the endorsement on the letter of engagement stating “I, Roxanne Mysko have read and understood this letter and accept the offer of employment from Express Cargo Services Pty Ltd trading as ECS Project Logistics on the terms and conditions set out in this letter.”
[45] Exhibit A1 – Tender Book at 105.
127 Mr Leslie did not sign the position description document.
SECTION E
Events between 1 and 14 June 2020
128 I set out below a summary of events during this time frame and my findings. I address the evidence concerning asserted safety breaches and non-compliance separately in Section J.
Documentary evidence
129 The respondent commenced working at ECS on 1 June 2020. On 1 June 2020, the respondent completed an induction checklist.[46] The respondent signed a declaration that she had read and been advised about the content, requirements and expectations of ECS policies and procedures and agreed to abide by the policy guidelines and procedures as a condition of employment at ECS. On 1 June 2020, the respondent also signed a document stating that she had read and been informed about the content, requirements and expectations of various policies which included the motor vehicle policy,[47] which required all employees to observe all road and traffic laws.[48]
[46] Exhibit A1 – Tender Book at 137.
[47] Exhibit A1 – Tender Book at 141.
[48] Exhibit A1 – Tender Book at 161.
130 On 1 June 2020, Mr Leslie sent to the respondent a copy of the HSE Action Plan and asked that they discuss the report when she had a chance.[49]
[49] Exhibit A1 – Tender Book at 123.
131 On 2 June 2020, the respondent sent a number of emails to Ms McRoberts and Mr McGuinness indicating she had commenced considering compliance systems and documentation.[50] The email from the respondent to Mr McGuinness stated: “we have apple [sic] to demonstrate our Compliance”.[51]
[50] Exhibit A1 – Tender Book at 279-282.
[51] Exhibit A1 – Tender Book at 279.
132 On 3 June 2020, at 8.51 am, Ms McRoberts sent to the respondent an email attaching the infractions report from the previous week’s IVMS.[52] The spreadsheet included a number of speeding infractions by an employee, Mr Hodson, including a reference to Mr Hodson travelling on 28 May 2020 at 105 kph in a 90 kph zone on the Toowoomba Bypass.[53] I specifically note this infraction as it assumed some significance in oral evidence which I address further below.
[52] Exhibit A1 – Tender Book at 329-330.
[53] Exhibit A1 – Tender Book at 337.
133 On 3 June 2020, Mr Knowles sent an email to the respondent in relation to the subject of engaging subcontractors. The email referred to a discussion with Mr Leslie regarding a procedure for engaging subcontractors and asked if the respondent could assist with standardising the process.[54] The respondent responded by email saying she had been having discussions with various employees of ECS so “we have a standard package for drivers and sub-contractors”. She stated:[55]
…We do need to have a discussion on this as we can improve things, and its [sic] a continuous improvement process. I think over all your [sic] doing a great job, so bit more fine tuning and routine Audits on subbies is a must.
[54] Exhibit A1 – Tender Book at 301.
[55] Exhibit A1 – Tender Book at 300.
134 On 3 June 2020, Mr McGuinness forwarded to the respondent an email dated 7 April 2020 asking recipients to read an attached set of IVMS specifications and rules which would be part of KPIs. The email requested recipients to always drive to road conditions and road rules and stated: “there is no rush, so take your time and be safe”. The email stated that if, for any reason, a person believed they were being rushed or pushed they should contact Mr McGuinness immediately.[56] The IVMS specification attached to the email noted that the IVMS was a requirement for vehicles operating in rural areas by Safer Together member companies and contractors as a high‑level minimum standard. The specification included reporting exceptions such as exceeding the speed limit and driving without a seatbelt.
[56] Exhibit A1 – Tender Book at 304.
135 On 3 June 2020 at 12.48 pm, the respondent sent to Mr Leslie an email which included a “Snap shot where I think we are at”.[57] The email referred to setting up a particular portal for fleet management and made some suggestions for improving documentation for completion by drivers. The email stated, among other things:
I will be calling a few drivers today for over speeds, and let them know this will be a regular process of mine. That for compliance we must issue them with non-conformance to be signed by them, if I cant [sic] get to see them, I will email or photo text it. I’ve just spoken to Gavin here in office re over speeds as he has 9, I showed him on Google maps, spoken to him about backing off and using engine brakes before towns to keep his speed managed prior to towns, one was on Toowoomba Bypass doing 15km over so I will give him a non‑conformance for this and re explained importance of managing issue…
[57] Exhibit A1 – Tender Book at 322.
136 The email continued to note that when there was speeding the respondent proposed to talk to the driver immediately. She continued:[58]
…I will do it nicely first couple of times but if it continues as a management team we will work out if they are suitable to keep. Educate first to help people get to standards we expect, continued repeat offenders should be terminated eventually if they cannot learn and listen.
[58] Exhibit A1 – Tender Book at 322.
137 In the email the respondent also stated:[59]
At a glance of all sub-contractors (given they are a large portion of your business) it will be critical we do face to face Audits moving forward. So for example I’m thinking (suggestion) if we win a big contract in Perth I go and Audit as many of our sub-contractors as possible to ensure we are using the good operators…
[59] Exhibit A1 – Tender Book at 322.
138 The respondent stated that any transport companies used for freight should be audited regularly.
139 The email continued to refer to trucks taken over by ECS from Ensign. The respondent stated:[60]
I’ve been asking a lot of questions on Ensign 6 trucks coming under us, and happy to look at Road Worthy Checks, Compliance Audits, the contractual business structure is important for me to know (are we leasing or taking ownership) as that will form the Compliance tasks (example what part of CoR does Ensign own for responsibilities and our responsibilities), and make sure any transport companies being used under our main sub-contractor transport companies are having due diligence audits and compliant as well. I’m very happy to help sub-contractors get up to our Compliance Standards. Right now I feel our sub-contractors are our biggest Risk due to gaps in physical Audits of them. These companies can not [sic] come under our Accreditation, but we need to support them achieve our standards, which would be Wayne, Colin and I going through a list of preferred suppliers to manage Risk Mitigation.
[60] Exhibit A1 – Tender Book at 323.
140 The email continued to note that speeding is an issue “so it will be getting nipped straight away” on the basis that if there was a fatality the company would be very exposed.[61] The email noted that “at a glance” the TAS Group document was accurate, but the respondent would look at each proposed action and work through it as soon as she had sorted immediate risks. The email ended by stating:[62]
…Over all [sic] I think you are doing a good job, we just need to fine tune our routines and some processes with evidence. Let me know how you want me to report into you, is it daily, weekly, phone email etc.
[61] Exhibit A1 – Tender Book at 323.
[62] Exhibit A1 – Tender Book at 323.
141 On 3 June 2020, Mr Leslie emailed a response to the respondent. He asked her to send to him a copy of a form to which she was referring. Among other things, in his email he set out a proposed process for management of breaches by drivers, including a process for meetings, with reminders and nonconformances and re‑training prior to giving a formal warning. The email noted:[63]
Regarding subcontractor audits – I 100% agree we need to be auditing them. I am happy for you to make arrangements to start the process as required and when the time is right and you have all your systems in place.
[63] Exhibit A1 – Tender Book at 381.
142 The email also provided some explanation in relation to the Ensign trucks and noted that they needed to ensure Mr McGuinness understood the importance of document trails and approved repairers. The email stated:[64]
Your advice on the gaps we currently have – mainly physical audits is the exact same sentiments of our external auditor. We must be more proactive is [sic] maintaining approved contractors.
[64] Exhibit A1 – Tender Book at 381.
143 On 3 June 2020, the respondent sent to Mr Leslie the form he had requested and asked some questions about matters such as the necessity for drivers to complete particular documentation. The respondent recommended certain matters including about completion of forms and driver training. Mr Leslie responded to answer her questions and provide additional information. His email referred to two prior occasions on which there was a disagreement about whether a driver supervised by Mr McGuiness had been given appropriate information and Mr Leslie’s concern to ensure the necessary documentation was completed to avoid the situation of it being the word of the supervisor against that of the driver. He referred to being at the point where there was a need to audit Mr McGuiness on a weekly basis to ensure he was doing what he said he would do. Mr Leslie asked the respondent to keep that to herself for now.
144 On 3 June 2020, Mr Leslie sent to the respondent another email entitled “FW: Rig Move Safety Case”. [65] The email said he would like to go over a list of matters with her for general discussion but, essentially, he was looking for “how much of this we god [sic] provide evidence for at short notice” and noted that they would be needing to write a safety case for an upcoming drilling rig move. The email contained a list of items including various plans for matters to be addressed during the rig move. One of the dot points in the email assumed some significance in oral evidence in a manner I address later in these reasons. It was as follows:
Use of sub-contractors; identify which sub-contractors will be engaged and verification that pre-qualification has been completed and accepted by NMT.
[65] Exhibit A1 – Tender Book at 456.
145 On 4 June 2020, the audit report prepared by Ensign (in February 2020) was forwarded to the respondent.[66]
[66] Exhibit A1 – Tender Book at 388.
146 On 4 June 2020, the respondent sent an email to Mr Leslie saying that she had passed on “a good contact” (a company called Matic Transport Australia (“Matic”)) and referring to “$30k week”. Mr Leslie responded including to say: “that tells me that you see a future working here so we must have made a good first impression”.[67]
[67] Exhibit A1 – Tender Book at 426.
147 On 5 June 2020, the respondent sent an email to Ms McRoberts asking a series of questions including how ECS had been auditing external transport operators working for ECS.[68] Ms McRoberts replied to the email by attaching ECS’ contractor management policy and setting out details of the process and documentation used for the evaluation of external contractors.[69] Ms McRoberts noted that Mr McGuinness provided contractors he wished to utilise for category 1 work which were assessed against a specified “Contractor QHSE Checklist”. Mr Knowles and his team provided contractors whose services they wished to utilise for category 2 work. In accordance with the procedure those did not have to be assessed against the “QHSE Checklist”. Ms McRoberts noted that she believed there had been six onsite visits to category 1 suppliers.[70] The respondent asked whether “Wayne or Colin done any Audits on transport companies”. Ms McRoberts responded to set out a list of six site visits conducted by Mr Knowles in relation to specified companies in October 2019.
[68] Exhibit A1 – Tender Book at 429.
[69] Exhibit A1 – Tender Book at 428-431.
[70] Exhibit A1 – Tender Book at 429.
148 On 11 June 2020, the respondent replied to the email from Mr Leslie dated 3 June 2020 entitled “RE: Rig Move Safety Case -Update”. The email asked whether Mr Leslie wished to book a time to discuss his list. The email stated that the respondent was “trying to mitigate what I see as big risks fast for you, then we can have a steady routine.”[71] The email continued to list some topics to cover in discussion. They included a reference to an entity called Maycon Tilt including:
…Maycon – number of topis [sic]
·List of 15-20 sub-contractors under Bob supervision working for us
·All to be pre-qualified with all documentation and insurances (15-20 of them I believe for immediate attention)
o … (right now Bob is managing all this - so I’ve explained to Colin I need to Mitigate our Risks with this process)
·Colin area is at biggest risk, so once I am up there I can look at what, how, who we need to focus on to help him Mitigate Risks
·Maycon Tilt – I am working directly with Bob so we can mitigate this risk quick as possible…
[71] Exhibit A1 – Tender Book at 455.
149 The email noted that the respondent wished Wendy’s employment to be maintained as there was a lot of catch up to do with Mr McGuiness’ side of the business, mainly data entry and weekly reports on drivers, subcontractors and audit data.
150 On 11 June 2020, Mr Leslie responded to the respondent’s email with answers noted in red.[72] In relation to the reference to mitigating risk in Mr McGuiness’ area, Mr Leslie responded “Yes please do” and in relation to Maycon Tilt, Mr Leslie noted:[73]
…Yes we have already discussed the above. I think you need to talk to Colin on this one. I am unhappy with Bob using up to 15-20 subcontractors. Colin has previously said that Bob uses 5 or 6 core subcontractors and Colin can personally vouch for their safety but hearing that he actually is using 15-20 makes me very nervous. You do what needs to be done here.
[72] Exhibit A1 – Tender Book at 458-459.
[73] Exhibit A1 – Tender Book at 459.
151 The respondent responded to say:[74]
Awesome, thank you. Colin and I are chatting a lot and getting on great.
[74] Exhibit A1 – Tender Book at 458.
Mr Alan Leslie’s evidence
152 Mr Leslie arranged for the Adelaide office of ECS to accommodate the respondent and arranged for formal induction including in relation to ECS’ policies and procedures. He asked that the respondent be introduced by phone to Ms McRoberts to enable her to give the respondent background into ECS’ systems for compliance and its regulatory and client-driven safety requirements.
153 Mr Leslie recalled that the respondent seemed to be positive, enthusiastic and eager to meet staff. Mr Leslie thought that, by the end of the first week, the respondent seemed to be settling in well. He started to delegate some responsibility to her and booked her into a 4WD course which she was required to complete to enable her to attend client sites in remote areas. Mr Leslie decided the respondent should travel to Roma to see ECS’ activities in the oil and gas field and meet Mr McGuinness and Queensland client staff.
Ms Roxanne Mysko’s evidence
601 Thereafter, the respondent sent a series of emails asserting she stated in Court that she needed to check with work and that, having done that, “we are far too busy before Easter”. She then asserted she had stated that 7 April 2022 was not suitable. She stated: “impossible for me to attend as I am away still, I am away still for work and will not be in SA until after Easter with work commitments”.[363]
[363] Exhibit A17 at 2754.
602 On 6 April 2022, the respondent emailed Chambers and ECS to say that no one at her work could have any time off in May and June. She stated: “it will need to be after Easter”.[364] She asserted she should not be in Court anyway. On 6 April 2022, the respondent also informed the Court she was not back in the State. She asserted she was treated like a criminal in Court and it was abuse.[365]
[364] Exhibit A17 at 2755.
[365] Exhibit A17 at 2756.
603 On 7 April 2022, at 4.43 am, the respondent sent to Chambers an email saying she was still in the Northern Territory. She said that on 1 April 2022 she had said she should be back Thursday. She said: “I can not [sic] attend today, so thank you, I’m sure you understand I’ve had great deal of time off work”.[366] Later that morning, about 20 minutes prior to the scheduled commencement of the hearing, the respondent sent a further email asserting that at the end of Court on 1 April she did say this date was suitable but she needed to check with her work.[367]
[366] Exhibit A17 at 2757.
[367] Exhibit A17 at 2758.
604 At the hearing on 7 April 2022, the respondent did not appear. Attempts to telephone the respondent from Court were unsuccessful. Her phone diverted straight to voicemail. I informed Counsel for ECS that I was minded to give the respondent one last opportunity and to give her a very short period of time within which to file a formal interlocutory application and supporting affidavit applying to adjourn which would need to address matters including when she would be returning to Adelaide and what were her roster and work commitments, with independent verification from her employer. On 7 April 2022, I made orders to that effect and adjourned to 11 April 2022. After Court adjourned, the respondent was provided with a copy of the orders, the transcript and an explanation of what was required of her.
605 Emails from my Chambers made abundantly clear to the respondent that if she did not either file a formal application with supporting affidavit, addressing the matters required in the orders by 5.00 pm on 8 April 2022, or attend Court on 11 April 2022, the Court would take it as an indication the respondent did not intend to call further evidence in her defence.
606 The email correspondence also made clear that, in the event the respondent sought to adjourn the trial, her affidavit must contain independent verification from her employer of her roster and work obligations. The email correspondence gave the respondent notice that if she failed to appear at the trial on 11 April 2022 and had not filed an application in accordance with my orders, the trial would proceed in her absence and that may mean that ECS would proceed to make closing submissions. The correspondence reiterated that if the respondent wished to give further evidence in support of her defence, she must comply with the matters set out in the correspondence.
607 On Friday, 8 April 2022, the respondent sent to Chambers email correspondence, among other things, indicating she had returned to Adelaide but would travel back to Darwin on Saturday. The email attached an unfiled interlocutory application and an unsworn affidavit together with a document on ABC Transport letterhead and a copy of a text message. The document on ABC Transport letterhead was undated and addressed “to whom it may concern”. The document essentially stated that the respondent was a fulltime worker, and her roster currently was such that her days off only fell on weekends.
608 There were a series of email exchanges that day between my Chambers and the respondent in which the respondent was informed that the information she had provided was insufficient and she had failed to comply with the orders. Multiple attempts were made to explain in plain and simple terms what the respondent needed to do to comply with the orders.[368] The respondent sent multiple responses which failed to address the requirements. She reiterated repeatedly that she did not have a roster. The respondent did not address the requirements of my orders. She provided a copy of a text message from “Pete” stating he would really appreciate it if everyone could try to see their way through May and June with no time off.[369] She did not obtain a letter from her employer addressing the required matters. After the time for compliance had expired, my Chambers notified the parties that the trial would resume on 11 April 2022.
[368] Exhibit A17 at 2804-2807.
[369] Exhibit A17 at 2796.
609 The affidavit (FDN 160) asserted matters such as the next few months is a busy time for fresh food transportation, the respondent does not have a roster, the Court had ignored validation from her employee and chosen to ignore honesty. She asserted the Court had allowed ECS to blackmail and bully her and she repeated assertions that the case was unlawful and she was a whistleblower.
610 On Saturday, 9 April 2022, the respondent by email sent to Chambers an affidavit sworn that day, and a further document on an ABC Transport letterhead. The affidavit and further document were subsequently filed on 11 April 2022. The further document was signed and stated that the respondent was currently a required fulltime driver and the employer could not provide her with days off other than on weekends due to her work roster. The document stated the respondent would be travelling to Darwin on 9 April 2022, returning on Friday afternoon and leaving again on Sunday. The document stated this would be the respondent’s ongoing schedule for “sometime” due to a high volume of freight.[370]
[370] Exhibit A17 at 2824.
611 The respondent’s employer did not directly approach the Court to ask the Court to adjourn to enable the respondent to work. The respondent did not assert that her employer had indicated there would be any consequences for her employment if she attended court on 7 April or 11 April 2022.
612 When the trial resumed on 11 April 2022, counsel for ECS vigorously opposed what he was willing to treat as an application for an adjournment. He submitted, among other things, there was no sufficient basis disclosed for the adjournment. I considered the respondent had failed to comply with the orders I had made; that she had been given repeated opportunities and the potential consequences had been explained to her in clear and unambiguous terms. I did not consider the material she had provided to be a sufficient or proper basis to justify what appeared to be a request to put off the continuation of her cross-examination for an extended and indefinite time. Accordingly, I determined that I would not grant the request and I would allow ECS to proceed in the respondent’s absence.
613 ECS then applied to reopen its case to tender a volume of email correspondence between the applicant’s solicitors, the respondent and the Court. I allowed that application as it related only to correspondence which had been authored or received by the respondent. I set a timetable for filing written closing submissions and a date for oral submissions.
614 In determining to proceed, I took into account the interests of expeditiously finalising the proceedings, the history of the matter, the manner in which the respondent had conducted herself during the trial and her stated attitude in relation to cross-examination. I took into account her change in position as to her availability and her employer’s need for her services. There was no material before me that suggested a request for an adjournment had emanated from her employer or that she would be prejudiced in any way, for example, by implications for her ongoing employment, were she to request an additional day off to attend court.
SCHEDULE C
615 Following receipt of the first notification on 14 June 2020 at 6.39 am, Mr McGuinness received, at 10.55 am that day, a further notification which recorded the respondent travelling 136 kph in a 110 kph zone on the Sturt Highway near Euston, New South Wales. At 10.38 am, Mr McGuinness forwarded the notification to the respondent again without any message.[371]
[371] Exhibit A1 - Tender Book at 466.
616 At 11.03 am, Mr McGuinness received a notification which recorded the respondent travelling 76 kph in a 50 kph zone in Euston. At 10.39 am, Mr McGuinness again forwarded the notification to the respondent without a particular message.[372]
[372] Exhibit A1 - Tender Book at 469.
617 At 1.12 pm, Mr McGuinness received a further notification that reported a failure by the respondent to wear a seatbelt. Mr McGuinness forwarded the notification to the respondent at 12.50 pm without a message.[373]
[373] Exhibit A1 - Tender Book at 475.
618 At 4.10 pm, Mr McGuinness received a notification which recorded that the respondent was travelling at 111 kph in a 100 kph zone near Back Creek.[374]
[374] Exhibit A1 - Tender Book at 478.
619 At 4.15 pm, Mr McGuinness received a notification which recorded that the respondent was travelling at 112 kph in a 80 kph zone.[375]
[375] Exhibit A1 - Tender Book at 480.
620 At 4.18 pm, Mr McGuinness received a notification which recorded that the respondent was travelling at 112 kph in an 80 kph zone near Wirrinya.[376]
[376] Exhibit A1 - Tender Book at 482.
621 At 4.21 pm, Mr McGuinness received a notification which recorded that the respondent was travelling at 107 kph and then 109 kph in an 80 kph zone at Wirrinya.[377]
[377] Exhibit A1 - Tender Book at 484.
622 At 4.27 pm, Mr McGuinness received a notification which recorded that the respondent was travelling at 107 kph in a 110 kph zone at Wirrinya.[378]
[378] Exhibit A1 - Tender Book at 486.
623 Relevant details of the exceptions report referred to in Section F include the following:
| Driver | Rule | Start Time | Distance | Details |
| [email protected] | Speeding | 6:38:38 AM | 0.41 | Speeding (Max Speed: 85 km/h (Max road speed: 50 km/h)) |
| [email protected] | Speeding | 10:54:47 AM | 0.71 | Speeding (Max Speed: 136 km/h (Max road speed: 110 km/h)) |
| [email protected] | Speeding | 11:01:44 AM | 0.49 | Speeding (Max Speed: 76 km/h (Max road speed: 50 km/h)) |
| [email protected] | Seat belt | 1:12:39 PM | 0.01 | Seat belt (Max Speed: 11 km/h Driver seat belt (1 = unbuckled): 1.00) |
| [email protected] | Speeding | 4:38:36 PM | 0.72 | Speeding (Max Speed: 111 km/h (Max road speed: 100 km/h)) |
| [email protected] | Speeding | 4:42:32 PM | 0.72 | Speeding (Max Speed: 107 km/h (Max road speed: 110 km/h)) |
| [email protected] | Speeding | 4:44:04 PM | 5.44 | Speeding (Max Speed: 109 km/h (Max road speed: 110 km/h)) |
| [email protected] | Speeding | 4:48:48 PM | 3.80 | Speeding (Max Speed: 107 km/h (Max road speed: 110 km/h)) |
SCHEDULE D
624 ECS applied by interlocutory application (FDN 192) to re-open its case to adduce fresh evidence, supported by an affidavit of Mr Elix (FDN 193). The basis for the application was that ECS had discovered fresh evidence which it said was material and likely to affect the outcome of the trial and that evidence did not exist and was not available to be adduced during the trial.
625 The fresh evidence to which Mr Elix deposed included emails said to have been sent by the respondent in September 2022 to key clients of ECS and to other individuals, including a reporter, making allegations about ECS and indicating intention in various ways to make information public. Other fresh evidence included posts by the respondent on LinkedIn. ECS also referred to dealings between the National Heavy Vehicle Regulator and representatives of ECS since judgment was reserved in which the National Heavy Vehicle Regulator was said to have completed its investigation and been satisfied with ECS’ systems.
626 Counsel for ECS submitted that, following the trial, the respondent engaged in further conduct which was part of an alleged ongoing course of conduct which demonstrated the respondent’s propensity to engage in the impugned conduct. Counsel submitted the evidence was not available prior to 16 May 2022 and could not have been adduced at trial and the respondent would not be prejudiced if the trial was re-opened. Counsel for ECS submitted that if the Court was not satisfied ECS had established its causes of action or entitlement to remedy, there would be reason to allow ECS to adduce the evidence which was relevant to alleged breaches and to the nature of relief which may be granted by the Court. However, counsel submitted that if the Court was already minded to find in favour of ECS and grant relief, there would be no need to re-open.
627 Counsel for ECS estimated that 1 to 2 days of Court time would be required for the further evidence, depending on whether any matters could be the subject of agreed facts.
628 The respondent opposed the application. I understood the respondent’s position to be that the correspondence in September 2022 occurred in the context of her being a whistleblower and being victimised by ECS (and others, including clients of ECS). The respondent contended she ought not have to deal with ECS any further and the Court ought to refuse the application and proceed to deliver judgment.
629 There are a number of recognised classes of cases, including fresh evidence, in which a court may give leave to re-open.[379] Relevant factors in the exercise of the discretion include:[380]
·Whether the evidence was not known and could not by due diligence have been discovered.
·Whether there was a tactical, deliberate decision not to call the evidence.
·The need to bring proceedings to a close as expeditiously as possible.
·The likely prejudice to the other party.
[379] Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24] per Kenny J.
[380] Hughes v Hill [1937] SASR 285; Mayne v Robbins [2009] SADC 58.
630 The overriding consideration in determining whether or not to allow a party to reopen its case is whether the interests of justice are better served by allowing or rejecting the application.[381]
[381] Urban Transport Authority of NSW v Nwesier (1992) 28 NSWLR 471; Mayne v Robbins [2009] SADC 58.
631 The jurisdiction is not to be exercised for the purposes of re-agitating arguments already considered.[382]
[382] Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.
632 The need for finality in litigation is a reason to refuse an application. When judgment has been reserved, the circumstances must be exceptional to justify the application. In Spotlight Pty Ltd v NCON Australia Ltd[383] the Victorian Court of Appeal said:[384]
There are good reasons why the circumstances must be exceptional before a court may allow a case, having been closed and judgment reserved, to be re-opened. The need for finality in litigation is one. It is no answer to this point to say that the further evidence sought to be adduced by the respondent in this case is confined to the quantum of damages. Were applications to re-open to be allowed almost of course, such applications would be regularly made. That would add enormously to inefficiencies in the administration of justice, even if the re-opened hearing was strictly confined…
(citations omitted)
[383] (2012) 46 VR 1.
[384] (2012) 46 VR 1 at [17]. Referred to in Aldridge v Johnston [2020] SASCFC 31.
633 The evidence was not available at the time of the trial. The communications occurred after judgment was reserved and there could be no suggestion that ECS made any tactical decisions not to adduce the evidence. While the evidence was not before me and I have not considered it in reaching my conclusions on the issues between the parties in the trial, the matters deposed to in the affidavit of Mr Elix suggested the evidence had potential relevance to the causes of action prosecuted by ECS and potential remedy.
634 The consequence of allowing the application to re-open would have been additional cost, time and resources, including Court time. Counsel for ECS, understandably, could not predict accurately the time that may have been required but considered it likely one to two days would be required to hear the additional evidence. Based on the history of the matter, I considered it reasonable to approach the application on the basis that the parties would not successfully agree facts. It appeared likely ECS would need to call oral evidence including from representatives of two of its clients. On the basis of then current listings, I considered I would not be in a position to accommodate a further hearing of one to two days of evidence until at least late March 2023, if not later, and then further time would have been required to amend the already completed judgment, adding significantly to the delay in finalising the action. I was also mindful that the respondent was unrepresented. Given the respondent’s asserted position concerning her whistleblowing status and submissions made to me concerning not only the conduct of ECS, but also that of client entities of ECS, there was potential for the respondent to seek to re-agitate issues already addressed at trial and to seek to agitate fresh issues, not the subject of the pleaded case, in relation to client entities which would potentially create additional complexity and cause further delay and costs. I was also mindful that, albeit in a different context, I did not allow the respondent the last adjournment she sought during the trial for the reasons set out in Schedule B. I had already completed and was ready to publish my judgment in which I had concluded that ECS had proved causes of action and established entitlement to relief. I did not consider the consequential delay to the finality of the litigation and the associated additional costs and resources to be warranted. I accordingly refused the application to re-open the trial. The evidence referred to in the application was not before me and was not taken into consideration in my judgment on the issues between the parties in the trial.
635 In responding to the application to re-open, the respondent referred to the decision in Quinlan. Counsel for ECS asked for an opportunity to put submissions in relation to Quinlan, which had not previously been addressed. In ECS’ submissions, among other things, ECS referred to breaches by the respondent of s 183 of the Corporations Act which provides that an employee of a company must not improperly use information obtained as an employee to gain an advantage or cause detriment to the company and submitted the injunctions sought could be made pursuant to provisions of the Corporations Act. I have not addressed those grounds which were not pleaded nor the subject of submissions by the respondent.
636 On 1 February 2023, ECS filed a further application to re-open (FDN 202) supported by an affidavit of Mr Elix (FDN 203). Mr Elix’s affidavit deposed to the receipt by ECS of a letter from the Acting Manager Investigations of the National Heavy Vehicle Regulator Investigations Unit. The letter, exhibited to the affidavit, referred to an investigation conducted by the Regulator, stated that the investigation had concluded and had revealed no breaches of the primary duty regarding a responsible person’s obligation under s 26C of the NHVL. Mr Elix’s affidavit deposed to the fact the evidence did not exist and was not able to be adduced by ECS at trial, it was relevant and may affect the outcome of the trial. ECS submitted the evidence was fresh, was previously unknown and unavailable, the application was brought promptly and was relevant to allegations by the respondent that ECS was breaching the HVNL and she was reporting unsafe activities.
637 I made orders for the filing of submissions, allowed the respondent time to file responding materials and gave her an extension of time.
638 The respondent filed a 15 page affidavit with many attachments. The respondent vigorously opposed the application. In her affidavit, among other things, she asserted the letter from the NHVR dated 25 January 2023 has no impact on the evidence in the trial which she considers demonstrates unsafe misconduct reported by her as a whistleblower. Her affidavit made unsupported assertions about the NHVR’s and ECS’ conduct, among other things, suggesting their failure to act on her report gave ECS 2 years to fix issues and destroy evidence. Her affidavit suggested the letter from NHVR dated 25 January 2023 did not relate to her complaint. The respondent’s affidavit reiterated matters the subject of evidence and submissions during the trial and raised additional issues and attached additional documents not in evidence.
639 The affidavit of Mr Elix suggested adducing the evidence would occupy no more than an hour or two of Court time. However, it is apparent from the material filed by the respondent that it had the potential to give rise to re-agitation of issues already addressed at trial and/or the agitation of new issues, including matters relating to the asserted source of the investigation, asserted delay and the conclusions of the investigation. I considered there was a real likelihood the additional evidence would generate significant additional hearing time and result in further delay and costs. Accordingly, I determined to refuse the application for the same reasons I refused the first application.
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